Will Global Warming Make Air Conditioning a Legal Right?

Across the country, prisoners or their families are suing states for heat conditions they argue amount to cruel and unusual punishment.

One of Maricopa County, Ariz., Sheriff Joe Arpaio's infamous "tent cities," where prisoners were often kept outdoors in the heat. (AP/Ross D. Franklin)

Before he died on the floor of his prison cell in East Texas, Robert Allen Webb asked for help.

“I’m feeling dizzy, weary, cramps, muscle spasms,” Webb wrote to prison medical personnel in 2009, according to The Marshall Project, a nonprofit news organization. He complained about being dizzy again in 2011, shortlybefore he was found dead on a mattress on the floor of his cell. His cellmate says Webb was trying to keep cool by sleeping on the floor. The day he died, it was over 100 degrees outside.

That year, Webb's family believes, a deadly heat wave in Texas claimed his life. His autopsy revealed a potentially lethal amount of an antidepressant in his system, but the pathologist also noted Webb had several risk factors for heat exhaustion, including the prescribed use of psychotropic medication, which interferes with the body's ability to regulate heat.

Nine other state prisoners in Texas -- where The Marshall Projects says roughly 80 percent of inmates lack air-conditioned cells -- died during that same heat wave, when temperatures stayed above 100 degrees for 18 days in a single month.

Last month, The Marshall Project and The Weather Channel released "Cooking Them to Death," a 20-minute documentary about Webb’s death, the lawsuit his family filed against the Texas Department of Criminal Justice and the dangerous consequences of a warming climate forprisoners living without air conditioning.

Across the country, inmates or their families are suing states for the heat conditions that they argue amount to a violation of the Eighth Amendment, which forbids cruel and unusual punishment. Just this year, there was an uproar in St. Louis after prisoners were filmed yelling for help out the windows of their un-air-conditioned cells, and Arizona prisoners in county “tent cities” endured temperatures so high their shoes were allegedly melting.

States say they either can't afford to air-condition prisons or don't need to because they're already taking steps to keep them cool.

Nevertheless, several cases nationwide have been decided in favor of prisoners when it comes to overheated cells. So far, there hasn't been an overarching case that addresses exactly what temperature constitutes a violation or requires whole state penitentiary systems to install air conditioning.

But some legal experts say global warming could soon change that.

“I think there’s a real possibility that the law will move in that direction,” says Michael Gerrard, a professor at Columbia Law School who oversaw a 2015 report on climate change and prison policy. “But I think it’s going to require extensive legal advocacy efforts by lawyers around the country.”

"Cooking Them to Death: The Lethal Toll of Hot Prisons" (The Marshall Project and the Weather Channel)

One of the more far-reaching cases was in Arizona: A 2014 settlement in Parsons v. Ryan required prisons to keep temperature logs, along with other measures. (Some logs recorded temperatures up to 119 degrees, and one prison allegedly falsified information on its logs.)

In 2012 in Louisiana, a federal judge ordered the State Penitentiary to control dangerous heat levels for three medically vulnerable inmates on death row. The heat index in that prison (meaning how hot it felt, taking into account humidity) had at times reached 109 degrees. The judge didn't go as far as requiring air conditioning, however, ruling that low-tech methods like ice chests and fans would be sufficient.

“There’s been quite a bit of variation in the remedies granted [by courts] but very little disagreement on the underlying legal principle, which is that heat can constitute cruel and unusual punishment,” says Gerrard.

Cases in Arizona, Mississippi and Wisconsin have also been decided in favor of prisoners suing over excessive heat or excessive cold in their cells.

The general legal principle for considering Eighth Amendment questions comes from Farmer v. Brennan, a 1994 U.S. Supreme Court case in which justices ruled that there had to be “deliberate indifference” to risk of serious harm and concluded that “the Constitution does not mandate comfortable prisons.”

It’s unquestionably difficult to muster political will in statehouses for what many see as a luxury being afforded to criminals serving time. Expense has also been a concern. Legislatures around the country would likely have to apportion substantial amounts of money to retrofit old buildings or build entirely new ones with air conditioning.

Texas State Sen. John Whitmire, who chairs the criminal justice committee, appeared to exemplify these points in a 2011 interview, according to the Marshall Project: “We couldn’t afford to [air-condition prisons] if we wanted to. But number one, we just don’t want to.”

A current class action suit in Texas, though, could set a precedent regarding climate change and prison policy.

The suit involves conditions at a geriatric prison north of Houston, where many inmates are on medications that could interfere with their ability to regulate their body temperature, and where the heat index regularly climbs above 100 degrees in the summer. The state of Texas argued it would cost $1.2 million to cool the prison every summer, but in a preliminary ruling in July, federal Judge Keith Ellison disputed that number and required medically vulnerable prisoners to be moved from the unit in question and put into air-conditioned facilities.

The state is appealing the ruling. In an emailed statement to Governing, the Texas Department of Criminal Justice stressed that the department takes steps to keep prisoners safe from the heat.

“Everyone has access to ice water. Fans are strategically placed in facilities to move the air. All inmates have a fan, and they can access air-conditioned respite areas,” the email reads. “These efforts work. There have been no heat-related deaths in the last five years.”

Part of the state’s argument in the case is that extreme heat events like the 2011 wave that may have killed 10 people are rare and “likely not to be repeated.” But, in a section of his ruling referencing the 2015 Columbia study on climate change and prisons overseen by Gerrard, Ellison appeared to disagree: “The Court and the parties have no way of knowing when a heat wave will occur, but it is clear that one will come.”

Indeed, studies have consistently found that, without a significant decrease in greenhouse gas emissions, deadly heat days will be more and more common in the coming century. Nine of the 10 deadliest heat waves in history have taken place since 2000.

Jails and prisons around the country are replacing in-person visits with video calls, enacting strict mail policies and other regulations that limit inmates' communication with family, friends and lawyers.